Dobson v Australian Postal Corporation
[2012] FMCA 1016
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOBSON v AUSTRALIAN POSTAL CORPORATION | [2012] FMCA 1016 |
| HUMAN RIGHTS – Disability discrimination – Disability Discrimination Act1992 (Cth) – discrimination in employment – requirement or condition – mental injury – presence of a disability – absence of material – no evidence to support contention – no inability to comply with workplace requirements – application dismissed. PRACTICE & PROCEDURE – Judgment – summary judgment – no reasonable prospect of success – no basis for disability claim – summary judgment allowed – originating application dismissed – costs awarded. |
| Disability Discrimination Act1992 (Cth) s.15(2)(a), s.15(2)(b), s.15(2)(c) Federal Magistrates Act 1999 (Cth) s.17A(2) Federal Magistrates Court Rules2001 (Cth) |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 |
| Applicant: | RORY PAUL DOBSON |
| Respondent: | AUSTRALIAN POSTAL CORPORATION |
| File Number: | BRG 205 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms S. Moody |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 30 May 2011 is dismissed.
The applicant pay the respondents cost of and incidental to these proceedings in accordance with the Federal Magistrates Court Rules 2001 on an indemnity basis commencing from 25 July 2011 onwards.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 205 of 2012
| RORY PAUL DOBSON |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Immediately prior to the commencement of trial of this proceeding, the respondent made application for summary disposal of the application.
I decided to proceed to hear the application for summary hearing for the following reasons:
a)the relatively short time that had been allowed for trial, based upon the solicitor’s estimates;
b)from the material it was apparent that even without the distraction of an application for summary dismissal the matter would not conclude within the allotted time;
c)the fact that the applicant had since become self-represented, a matter which usually elongates proceedings; and
d)following resolution of this application the time for hearing could be better estimated.
Following determination of that application I will determine the appropriate steps to progress the proceeding to its conclusion. However, given that the matter is otherwise, in all respects, listed and ready for trial and that the applicant, to this point, has been legally represented, I have proceeded to determine the summary application with the added confidence that the applicant’s material states his case at its highest.
In its application, the respondent seeks orders that the application be stayed or dismissed on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceeding or that the proceeding is frivolous or vexatious and/or is an abuse of process.
Looking to the principal application, the applicant complains that the respondent has engaged in unlawful discrimination in contravention of s.15(2)(a), (b) and (c) of the Disability Discrimination Act 1992 (Cth) (the DDA). From his written submissions, filed 20 September 2011, the discrimination is characterised as an indirect disability discrimination, as defined in s.6 of the Act. He claims for damages including general damages, special damages and exemplary damages.
So far as is relevant, s.15 of the DDA provides:
“Discrimination in Employment
…
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…”
As I have noted, the discrimination complained of by the applicant is indirect disability discrimination. Section 6 of the Act defines that as follows:
“Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.”
I should note that since the material time of these events in mid-2009 the DDA has been amended. The definition of indirect disability in s.6 was varied, however, for the purposes of this application, the principal amendment addresses the matter of onus and will not have any consequence upon my determination. The applicant contends nine bases upon which he says he suffered disability discrimination in contravention of s.15. They will be listed shortly.
The respondent contends that upon an examination upon each of those matters, it will be seen that they are not “requirements or conditions” for the purpose of s.6 and therefore there can be no basis to find a discrimination. The principles concerning applications for summary judgment are relatively well settled. The power to summarily dismiss an application is contained in s.17A(2) of the Federal Magistrates Act 1999 (Cth) and amplified by Rule 13.10 of the Federal Magistrates Court Rules2001 (Cth).
The principles themselves have been articulated in many cases, but can perhaps be best summarised by reference to the remarks of the majority in George v Fletcher (Trustee),[1] where, at paragraph 75, their Honours referred to the decision of Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511:
“[53] The “no reasonable prospects of success” formula of s.31A is that which was adopted by r.24.2 of the United Kingdom’s Civil Procedure Rules (the CPR) following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1996, Ch 12, ss.31-36. The same test has been adopted in rr.292(2) and 293(2) of Queensland’s Uniform Civil Procedure Rules 1999.
[54] Under s.31A I must be satisfied that the applicants have no reasonable prospects of success, but as s.31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s.31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 91–2…
These remarks have since frequently been cited with approval by various judges of this Court. They offer valuable guidance in relation to the background to the enactment, purpose and meaning of s.31A and its equivalent, s.17A. The suggestion made by Lindgren J (at [54]), with which we agree, that the intention of the legislature in enacting s.31A was to "lower the bar for obtaining summary judgment" does not carry with it the additional proposition that the intention was to remove the bar completely. True it is that s.31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s.31A to grant summary judgment. That would be inconsistent with the way in which the phrase "no reasonable prospect of success" is to be read in light of s.31A(3) (and s.17A(3)).”
[1] [2010] FCAFC 53.
As their Honours noted in those paragraphs, the principles apply with equal force to s.17A of the Federal Magistrates Act 1999 (Cth). However, the observations are to be tempered by the caution expressed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[2] where, at [45], his Honour said:
“[45] I am of opinion that in assessing what reasonable prospects of success are for the purposes of s.31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s.31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s.31A envisages. In moving the second reading of the bill introducing s.31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened “the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.””
[2] (2006) 236 ALR 720.
I have added those additional remarks to highlight the challenge that faces the applicant in any such application. However, for reasons that follow, I am of the view that in this instance, taking the applicant’s case at its highest, no material contest of fact arises which requires consideration.
Dealing then with the substantive application, and bearing in mind the principles applicable to summary judgment applications, the principal application itself requires close analysis. The respondent proceeds upon the premise that the applicant’s case should be accepted at its highest. That approach is taken, despite there being issues of fact between the applicant and the respondent over events which are alleged to have occurred. However, for reasons which follow, it is apparent that those issues of fact are not material to the factual issues which have to be determined in this case for the applicant to succeed in his application.
The dispute is essentially one which arises out of the workplace, an environment that is generally fertile ground for dispute. In summary, the applicant complains that he was employed by the respondent between 30 January 2006 and 9 July 2007 at its Northgate Mail Centre. He resigned from his employment on 9 July and since that time has had difficulty finding alternative employment because of his psychological state, a matter which he contends the respondent is responsible for because it did not act to stop him being bullied and harassed by other employees.
He says that the respondent thereby committed unlawful discrimination by engaging in indirect, that is, adverse impact disability discrimination in contravention of s.15(2)(a), (b) and (d) of the DDA. He says that he was required by the respondent to comply with unreasonable requirements and conditions that because of his mental disability (an adjustment disorder) he was not able to comply with. These alleged unreasonable requirements and conditions had the effect of disadvantaging him by increasing the severity and duration of his mental disability.
He says that he resigned from his employment with the respondent because of the alleged unlawful discrimination. In particular, he alleged nine unreasonable requirements and conditions imposed by the respondent. They were:
a)Failing to adequately investigate and accurately document both the applicant’s oral and written harassment complaints against Mr Thomas Sheedy, the mail officer at the Northgate Mail Centre, and his oral harassment complaint against Ms Dina Scott, the acting shift production manager at the Northgate Mail Centre.
b)Failing to prevent further incidents of locker graffiti at the respondent’s Northgate Mail Centre.
c)Failing to grant the applicant’s shift transfer request in a timely manner.
d)Requiring the applicant to pass psychological “Fitness for Duty Assessment” before granting a shift transfer request.
e)Requiring the applicant to remain rostered on the 6:00pm fulltime shift until 4 February 2010 by failing to immediately transfer him to the 11:00pm part-time shift.
f)Failing to provide the applicant with assistance in the form of “48/52” purchased leave.
g)Requiring the applicant to work an additional four weeks in 2010 by refusing to approve his “48/52” purchased leave application.
h)Failing to notify the applicant whilst he was on sick leave that three previous periods of sick leave were processed as “unauthorised absence” because he had not yet provided supporting medical evidence.
i)Failing to re-process two of the applicant’s sick leave periods as “sick leave without pay” after the applicant provided supporting medical evidence.
Much of the respondent’s concern about the applicant’s claim can be addressed by a brief consideration of the principles governing disability discrimination claims as is well settled by authority.
It will be remembered from s.6 of the DDA that there are essentially four things to be considered before establishing a prima facie case of indirect disability discrimination.
First, there must be a requirement or condition; second, the aggrieved person is required to comply with the requirement or condition; third, because of the disability the aggrieved person would not, or not be able to, comply with the requirement or condition; and fourth, the requirement or condition has or is likely to have the effect of disadvantaging persons with a disability.
In essence, the respondent complains that the applicant’s case fails in limine because none of the matters complained of constitute a “requirement or condition” for the purposes of s.6. This deficiency, it is submitted, is highlighted by the applicant’s failure and inability to articulate such a requirement or condition with reasonable precision.
The issue was raised in Walker v The State of Victoria (2011) 279 ALR 284. That was a case involving alleged indirect discrimination in an educational institution directed toward a child with intellectual disability. At first instance, his Honour, at paragraph 194, noted in respect of this point:
“It is clear from these authorities that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain. Nonetheless, a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant. In many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent. In a case such as the present, however, where an applicant seeks to rely on inaction by an educational authority, clarity of the claim is essential. Without it the respondent will be unable to determine whether it has or has not imposed such a condition or to formulate defences on the ground that one or more of the criteria prescribed by s.6 of the DDA have not been satisfied.”
These remarks were endorsed by the Full Court on appeal. See in particular the observations of Grey and Reeves JJ at [35] and Flick J at [137].[3]
[3] Walker v State of Victoria [2012] FCAFC 38.
I note that the trial judge’s remarks addressing situations where inaction is relied upon and in particular his comment at [194] that “clarity of the claim is essential” in such instances. He noted that without it a respondent would be unable to determine if he has imposed a condition or formulate a defence on the ground that one or more of the criteria prescribed by s.6 of the Act had not been satisfied.
So much was also emphasised by Flick J on the appeal at [135] where his Honour noted:
“Section 6, it will be noted, requires (inter alia) the identification of a “requirement or condition.” As noted by the primary Judge, the Appellant failed to identify “with precision” the “requirement or condition”: Walker [v The State of Victoria (2011) 279 ALR 284] at [181]. His Honour referred to the observations of Kirby J in New South Wales v Amery [2006] HCA 14 at [128], 230 CLR 174 at 212 that “where the Act is addressed to a ‘requirement or condition’ … it is necessary to identify with precision what the relevant ‘requirement’ or ‘condition’ is.””
Furthermore, it was recognised by Sackville and Stone JJ that:
“The expression ‘requirement or condition’ in s.6 … should be construed broadly to include any form of qualification or prerequisite.”[4]
[4] Catholic Education Office v Clarke (2004) 138 FCR 121 at 143.
I proceed now to deal with the nine claims. They can be broken broadly into two groups.
The first group are those where the applicant complains of a requirement to do something. The second group addresses a failure by the respondent to do something. There the applicant must successfully contend the failure can be converted into a requirement or condition which he is or was required to comply with.
However, before proceeding to that analysis, it is first important to ascertain the applicant’s disability. Section 4 of the DDA defines “disability” to mean, inter alia:
“A disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”
It includes a disability that presently exists or may exist in the future. It is evident from the medical evidence that the applicant suffers an adjustment disorder. Dr Field diagnosed its origin as stress in the workplace. It was clearly apparent at the time material to these events. Each of the requirements needs to be considered against the background of that particular disability.
The first group to be considered then are those complaints which have been formulated as requirements. They are complaints addressed in complaints 4, 5 and 7 of the complaints I have earlier noted. I note that in argument, complaint 7 was treated as one and the same as complaint 6. Complaint 7 simply appears to be a re-formulation of complaint 6, by changing it from a failure to a requirement. On either basis, I do not think that that matter will impact on the outcome.
The difficulty that the applicant suffers in prosecuting each of these complaints is that on the evidence as it presently stands there is nothing to demonstrate that any of the requirements were such that because of the applicant’s adjustment disorder disability he did not or would not comply or is not able or would not be able to comply, with the requirements. It is to be expected that this matter would generally be addressed by medical evidence. There is simply none. In fact, if anything, the medical evidence that does exist is against the applicant on the point. For instance, Dr Field was consulted. He noted in his report that upon reviewing the applicant in respect of his fitness for a return to work in early 2010 following issues arising from the shift transfer issue, that the respondent had required the applicant to have a psychiatric clearance because of the danger of workplace violence or inappropriate behaviour. On the second page of his report, Dr Field stated:
“My assessment of Mr Dobson is that he would be able to return to work at the present time…”
By inference, the assessment having been effected and provided it does not appear on either a micro or macro basis that the applicant was unable to comply with that requirement.
For like reasons, complaints 5 and 8 also fail. There is no evidence to support the contention that because of his adjustment disorder, the applicant did not or could not comply, or is not able or would not be able to comply, with his roster or requiring the applicant to return to work rather than take leave without pay on a purchase leave basis.
Upon that basis, I am satisfied that the applicant has no reasonable prospects in respect of those parts of the claim, and in that respect the application must fail.
The second group of complaints were not expressed as requirements. They were expressed as failures by the respondent to do certain things for the applicant. To recap, they are complaints 1, 2, 3, 6, 8 and 9. They are the remaining complaints.
A common and critical characteristic in issue in each instance in respect of these complaints is the question of whether each of the matters complained of were requirements or conditions that the applicant was required to comply with. The respondent’s contention was that they were not.
At the outset, the expression “requirement or condition” must be construed broadly to include any form of qualification or pre-requisite. However, it cannot be overlooked that in complaints 1, 2, 3, 6, 8 and 9, the source of the complaint is a “failure to do” something. In other words, inaction. In that context, clarity of claim is essential. Clarity of claim not only means its expression but also the manner in which the inaction is to be considered in the overall context of s.6.
For instance, in his oral submissions, the applicant submitted to this effect: Well, if the complaints are not presently well articulated, what I am trying to say is I was required to endure my employment under and upon that condition. Or that matter was a requirement of my continued employment.
In his subsequent supplementary submissions he expressed those complaints by rewording them. Complaints 1, 2, 3, 6, 8 and 9 were reformulated in these terms.
“i. the requirement to remain employed without the respondent accurately documenting and adequately investigating his harassment complaints against Mr Thomas Sheedy and Ms Dina Scott;
ii. the requirement to remain employed without the respondent taking all reasonable and practicable steps to prevent further incidences of locker graffiti at Northgate Mail Centre;
iii. the 30 October 2009 requirement to remain rostered on the 6pm full-time shift indefinitely (no effective date for the shift transfer was provided by the respondent on 30 October 2009);
…
vi. the requirement to remain employed without the respondent providing him with assistance in the form of “48/52” Purchased Leave (four (4) weeks unpaid leave).
…
viii. the requirement to remain employed without the respondent notifying him, while he was on Sick Leave on 14 December, that three of his previous Sick Leave absences were to be processed as “Unauthorised Absence” because he had not yet provided supporting medical evidence; and
ix. the requirement to remain employed without the respondent reprocessing two of his Sick Leave absences from “Unauthorised Absence” to “Sick Leave Without Pay” after he provided supporting medical evidence.”
While the re-wording, arguably, serves to satisfy the requirement of clarity, at least in terms of what is alleged against the respondent. It also serves to highlight why those clauses ought also fail in limine as demonstrating requirements or conditions.
First, there is no evidence that the respondent required the applicant to remain employed subject to any such asserted requirement or condition. At the very least, the applicant would need to lead evidence that in respect of each of those matters he had some exchange with a representative of the respondent following which he reasonably concluded that it was the respondent’s attitude and requirement or condition of his continued employment, that he continue under those conditions. There is no such evidence. Upon that ground alone those matters are not conditions or requirements for the purposes of s.6 and the application must fail.
In any event, paragraphs 6, 8 and 9 would fail because of an absence of material to address the requirement that the alleged requirement or condition could not be complied with by the respondent because of his disability. Accepting that his disability is the psychological disability which I have earlier described, the issue of not being able to comply with the requirement or condition because of the disability is also problematic. Take, for instance, the first re-expressed complaint in this category, that is, complaint 6. The requirement to remain employed without the respondent providing him assistance in the form of 48/52 purchased leave (4 weeks unpaid leave). I assume for this purpose that there is evidence that the employment continues subject to this requirement or condition. In that event, the question is whether he would not comply, was not able or would not be able to comply with the requirement or condition because of his disability. The matter is simply not addressed on the evidence. In fact, it could be inferred from a review of the medical reports that the opposite is indeed the case.
Concerning complaints 1, 2 and 3, those matters were touched upon in the medical evidence, which itself does not address the question to be answered. However, as it stands, the medical evidence does not assist the applicant on this point either.
It follows that upon that basis complaints 1, 2, 3, 6, 8 and 9 also have no reasonable prospects and ought be struck out. It follows that I am of the view that the application generally has no reasonable prospects of success and that in the circumstances it is appropriate that the application be dismissed.
The applicant was unsuccessful in the application and the respondent seeks costs. It not only seeks costs on the basis of the usual order, but also from at least 25 July 2011 on the indemnity basis. On 8 July 2011 the respondent forwarded the applicant a letter which incorporated an offer of compromise prepared in accordance with the court rules. In particular, it provided that the respondent would pay the applicant the sum of $5,000.00 within seven days of acceptance of the offer, in settlement of his claim for damages and medical expenses as set out as an annexure to the application dated 30 May 2011 and costs, less any applicable taxation.
In exchange, the applicant was required to withdraw his application seeking declarations contended for in his application. The offer was noted to remain open to 25 July 2011. The applicant did not accept the offer and proceeded to hearing and the outcome is as I have adjudged it to be. The approach in these circumstances discussed in Colgate-Palmolive Co v Cussons Pty Ltd[5] where Sheppard J exhaustively examined the question of costs and circumstances which would warrant the order of costs on the indemnity basis.
[5] (1993) 46 FCR 225.
His Honour noted that the ordinary rule is that where court orders costs of one party to litigation to be paid by another, the order is for the payment of those costs on the party and party basis. He however, noted that there are circumstances where a court may depart from the usual form of order that might be awarded. Those circumstances would include instances where there has been an imprudent refusal of an offer of compromise. In my view, this is a case where there was an imprudent refusal on an offer of compromise.
Although I have not addressed these matters specifically in my judgment, the fact is that this application has the appearance of one prepared in the nature of a personal injuries proceeding rather than for a proceeding which specifically addresses the statutory requirements of the DDA. A large part of the material which was in contention was entirely irrelevant to the application because it simply missed the point of an application under ss.6 and ss.15 of the DDA.
It follows that, having regard to the manner in which the application was prosecuted, the respondent has been put to unreasonable trouble and expense. It is a matter which the respondent reasonably sought to address by delivering an offer to settle in a timely matter. It is unfortunate that the offer was not accepted. It is a matter that perhaps the applicant can take up with his then legal advisers. The fact remains that the refusal of the offer was imprudent having regard to what was a fundamental deficiency in the application. As I earlier noted, the application was presented on the first day of hearing as an application evidencing the applicant’s case at its best and yet, by reason of matters evident, there was no material to address matters which were quite necessarily critical if the application was to have any prospects.
It follows that it is appropriate that there be an order for indemnity costs and that the order take effect from 25 July 2011. I will direct that the applicant pay the respondent’s costs of and incidental to the proceedings, in accordance with the court scale, to 25 July 2011 and beyond that date upon the indemnity basis.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 15 November 2012
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